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Lord Mackay of Ardbrecknish moved Amendment No. 19:


(" .--(1) The Commission shall, before any Bill containing provisions for a referendum under section 99 of this Act is held--
(a) give advice as to the question, or questions, to be asked;
(b) make a statement as to the fairness of the wording of such a question, or questions, and the capacity of such a question, or questions, to be easily understood by the electorate.

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(2) Any advice given under this section shall be made public prior to the date on which a Bill for a referendum under section 99 of this Act is laid before Parliament.").

The noble Lord said: My Lords, noble Lords will realise that with Amendment No. 19 we are discussing government Amendment No. 171. In Committee, we discussed the issue of the question. Quite clearly, the question is one of the most important items in any referendum. It is not so much that both sides must agree on the fairness of the question, but proponents for both sides of the argument must feel that the question is fair. Then the result will be considered to be fair. The way in which the question is put is obviously of great significance. Anyone who studies opinion polls and examines results which are obtained by tweaking questions one way and another can see how important the question is in a referendum.

I tabled Amendment No. 19 after we discussed the Bill in Committee. The amendment would ensure that, when a government decided to proceed with a referendum, they would take the mind of the commission and publish its opinion. Therefore, when the detail of the referendum, including the question to be asked, was discussed in a Bill before your Lordships' House and the other place, Parliament would know the commission's view on the question. I do not believe that any government would be able to ignore the view of the commission in relation to the referendum question. If they were to do so, there would be such a fuss that their position would simply be untenable.

The Government have tabled Amendment No. 171, which seeks approximately the same outcome but perhaps does not go as far as we would wish. It goes some way, but it does not make it mandatory for the government of the day to obtain the commission's approval of the wording of the question. As I said, if the commission were to tell a government that it did not consider the question to be fair, I do not believe that any government would be able to continue with it through both Houses of Parliament.

The Minister will explain to your Lordships exactly what his amendment seeks. I say only that noble Lords will note that the government amendment is three times longer than mine. I suspect that that tells us everything about this Bill, which is now 50 pages longer than it was when we started the Committee stage. I look forward to counting by how many pages it increases following this stage. I make no complaint about this extra page. However, I beg to move my amendment in order that we may discuss the Government's amendment.

Lord Norton of Louth: My Lords, I rise briefly to welcome Amendment No. 171, which has been tabled by the Government in response to our discussion on this particular issue at an earlier Committee sitting. I made the point then that, given the expertise of the commission, this could be made use of as regards the wording of any referendum. The point I made was that not only has one to look at a referendum question in terms of whether it is fairly put but also whether it is unambiguous. That is an extremely important point

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because referendum questions may often appear to be unambiguous to those who draft them but when put to electors they are capable of being interpreted completely differently. Research in the United States has shown that sometimes there can be a high level of mistaken voting by people who have misinterpreted the question.

Lord Lamont of Lerwick: My Lords, perhaps I may interrupt my noble friend. As someone who has just looked at these two amendments, I see that the Government's amendment--no doubt the noble Lord will address this point--is all about intelligibility. The amendment posed by my noble friend Lord Mackay was about the fairness of the question. These seem to me to be rather separate matters. Perhaps my noble friend would address that point, because it is possible to word a question in a way which is more likely to receive an answer "yes" or "no".

Lord Norton of Louth: My Lords, I thank my noble friend for his intervention. The point I made at an earlier stage was about the importance of ensuring that questions were unambiguous and that the commission had a role to play in that respect. I very much welcome any move towards the question of intelligibility.

I was about to deal with the very point that my noble friend Lord Lamont has raised--the question of fairness. As my noble friend said, that is a different and separate point, in terms of making sure that the question is both balanced and unambiguous. I was going on to invite the Minister to address this matter.

The amendment itself is comprehensive in relation to intelligibility and it covers all the relevant circumstances that might be envisaged in this particular context. I very much welcome the amendment so far as it goes but, like my noble friend, I would invite the Minister to address the matter of equity as well as that of intelligibility. The government amendment is to be welcomed because it goes a long way towards meeting the point and I am interested to know whether the Minister would be prepared to go that little extra distance on the very point that has been raised.

Viscount Cranborne: My Lords, I am pleased that the Government have given us half a loaf, although disappointed for the same reasons as my noble friend Lord Norton. I wonder whether the Government would also consider something else. It seems to me that no matter how wise the commission may be--and we have discussed its wisdom almost ad nauseam during these proceedings--that wisdom will always be a matter of judgment one way or the other as far as it is concerned. Of course, the members of the commission are there as wise men and women but not as elected wise men and women. They are there because of the rather curious 21st century view that wise men and women are better than elected men and women. That is a view to which I have never subscribed, as your Lordships who have had the misfortune of hearing me over many years will no doubt have realised.

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I wonder whether the Government have ever actually considered that they might have avoided all this trouble in the first place if they had postulated that it should be impossible to hold a pre-legislative referendum. If they were to say that all referendums should be post-legislative, it would be very difficult for any government of the day then to emasculate parliamentary scrutiny of any proposal by means of the rather ghoulish accusation that anybody who disputed a piece of legislation introduced after a pre-legislative referendum was going against the will of the people.

I suspect that it would have been much better had we provided in this Bill that referendums should always pose the question: "Do you approve of this piece of legislation or not?" Then the matters of definition would not arise. However, as the Government have not taken that route, we must be grateful for small mercies.

Lord Bassam of Brighton: My Lords, on the first day of Committee--it seems a long time ago--we debated the question of involving the electoral commission in settling the referendum question. The debate was good-humoured, penetrating and very thoughtful and I thought we had discovered a degree of consensus. I indicated that the Government were likely to bring forward an amendment, and this has how been done. The Official Opposition indicated that they were not likely to let the matter go and they too, very fairly, have brought forward their own amendment.

The two new proposed clauses are clearly alternatives and the Committee has to choose between the two. I have no doubt at all that the Government amendment is to be preferred and I hope to be able to convince your Lordships of that. Indeed, I hope I might even be able to convince the noble Lord, Lord Mackay, of that and to invite him to withdraw his amendment in favour of our own.

There are two main points of difference between the proposed new clauses. The first concerns the procedure for engaging the commission, and here I hope to convince all sides The procedures in the two new clauses are different but I do not believe that on reflection anyone could hold up the procedure proposed in the Opposition amendment as being superior to our proposal.

The procedure set out in the government amendment is simple and straightforward. The commission will notice that a Bill with a referendum question has been introduced into Parliament and will, of its own motion, publish its opinion. The procedure set out in the Opposition's new clause is rather more complicated and, for that reason, perhaps less satisfactory. Its essential feature is that, somehow, the commission must give its advice before a Bill is introduced. The obvious inference is that the Government or a Member of Parliament, when intending to bring forward a Bill, should at least give the commission an opportunity to comment, and perhaps even ask the commission to frame a proposal before the Bill is introduced. That proposal, I suggest, is unsatisfactory. Its effect is that a Bill cannot be

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introduced unless and until an outside body--in this case, the electoral commission--has opined on it. It would, I think, be the first instance in which Parliament had effectively bound itself in such a way. It would also provide rich opportunities for confusion. How is the matter to be put to the commission if there is not yet a Bill? Will the commission disclose that it has been approached? Will people have an opportunity to make representations to the commission to influence the advice it gives? I daresay that noble Lords, with their forensic skills, could find some sort of answer to those questions if there was anything really at stake. But they do weigh against the Opposition's new clause when there is a simple, straightforward and, I would argue, transparent alternative on offer, as in the government amendment.

The second main difference between the two clauses lies in the scope of the matters on which the commission is asked to give its opinion. I accept at the outset that this may be more contentious than the procedural aspect. Even here, however, I am not without hope. I thought that, in Committee, there was a good degree of consensus that the intelligibility of a proposed question was a matter on which it was pre-eminently sensible to engage the commission. I think that that is probably an opinion shared by most Members of your Lordships' House. It is in everyone's interest that if a question can be put in a clearer form, and we can reduce the risk of people voting for an outcome that they do not want, we should do it. That seems to be common ground. However, I should add that the intelligibility of a question also seems to the Government to be a matter on which the engagement of the commission is cost free. No government, I hope, will propose a question which is deliberately obscure; and no government, I hope, will feel that their honour is impugned if the commission is able to suggest some modest improvements.

Beyond that point, however--and the Opposition's amendment goes a good way beyond that point--we get into much deeper waters. I am uneasy about asking the electoral commission for advice on, "The question to be asked". I am equally doubtful about asking it for an opinion on the "fairness" of the proposed question. That may be a surprisingly candid comment, but it will be stuck to resolutely on this side. Whether a particular question should be asked, and whether it is a fair question, are matters which, as I think most Members of your Lordships' House would and should readily accept, are very much in the political arena.

If a government propose that a question should be asked, that will be because they believe that it should be asked. A government will, almost by definition, believe that it is a fair question to put. The opposition, whatever their political colour at the time, will, frankly, have a duty to oppose, should they wish to do so.

It is highly likely that the opposition of the day will look to find something to quarrel with in the form of the question. I would argue that that is part of the cut and thrust of our political process. I do not think that there is anything wrong with that. It means, inevitably, that the commission will be commenting on a matter

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which will, in due course, become one of party-political controversy. I would argue that that is not a good position in which to put the commission; nor--again, very frankly--would the commission necessarily have any special expertise in that area.

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